Witt’s missing emails point to possible flaws in Jeffco policy, state open records laws

Jefferson County school board president Witt has no official record of district-related messages that he sent or received from a private email address during the last half of September, a time when the suburban county was embroiled in a heated debate about how teachers should be paid and how U.S. history should be taught.

But a Chalkbeat investigation found several instances of official business that Witt conducted during that time using that email address.

The discrepancy was discovered after Chalkbeat submitted an open records request asking for Witt’s emails from Sept. 15 through Sept. 30 and was told by district officials and board lawyer Brad Miller that there were none from his private account.

Additionally, Chalkbeat has learned Jeffco Public Schools might not be in compliance with state open records laws because it has no explicit policy for how its employees should maintain digital records, such as email.

That no records of email correspondence discussing school business exist in Witt’s private email account raises questions about the school board president’s commitment to transparency, a value to which he has repeatedly expressed his dedication.

In total, Chalkbeat has identified five email conversations pertaining to Jeffco business that Witt participated in through his private account but that were not included in the response to the records request. It’s unclear if more official emails were exchanged during that time that should have been issued to our request.

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“Chalkbeat is my go-to education news source. Typically, Chalkbeat is the place to find out about district news before you hear about it anywhere else.” — Amy M.

For example, Witt has no official record, according to the results of the records request filed by Chalkbeat, of an email he received at 8:20 p.m., Sept. 20 from a constituent encouraging him and board member Julie Williams to “keep up the good and hard work.”

Nor did Chalkbeat’s request turn up an email Witt sent his fellow board members from his private account at 9:06 a.m., on Sept. 16, asking how members of the board’s advisory committee is appointed. (Witt later forwarded that email to his colleagues from his Jeffco account.)

The request also failed to yield a copy of an email sent by one of Witt’s major campaign supporters discussing how to refocus the board on achievement goals and not on a controversial proposal to establish a curriculum review committee, even though Sheila Atwell, executive director of Jeffco Students First, told us she sent such correspondence.

“I’ve been emailing with him,” Atwell told Chalkbeat last month.

(Atwell, on Friday, told Chalkbeat she does not recall either that statement or emailing Witt during that time period. Atwell was unable to immediately review her email because she was on vacation with her family in Florida.)

And finally, the request should have yielded several exchanges with a Chalkbeat reporter discussing the future of an advanced history class offered by Jeffco Public Schools.

But Witt’s lawyer, Brad Miller, told the Jeffco official fulfilling Chalkbeat’s open records request that the board president — who has faced criticism for obscuring the board’s operations from public view — has no emails in his private accounts discussing the public’s business between Sept. 15 and Sept. 30.

“Frankly, I don’t recall what your request included,” Miller told a Chalkbeat reporter when he was asked why an email exchange with a journalist might not be disclosed as part of a Colorado Open Records Act request, or CORA. “We’ve had dozens upon dozens of requests. I’ve found Ken to be very diligent to respond every time I can tell.”

Any written correspondence to conduct public business sent or received by an elected official in Colorado, regardless of its medium or whether the device used is personal or state property, is subject to the state’s open records laws, a fact Miller said all board members know.

“I have advised the board they have an equal obligation [to disclose emails] contained in personal accounts as it pertains to district business,” Miller said Thursday by phone. “I’ve made it very clear with all five, they don’t have an excuse or an expectation of privacy.”

Witt did not return repeated requests for comment. He also declined to discuss our investigation in person at Thursday’s board meeting.

It is unclear why Witt did not turn over the email conversations Chalkbeat learned about or obtained, or if they still exist on his personal email server.

Witt’s response to Chalkbeat’s request points to what experts say is a critical flaw in the state’s open records laws: There are no statewide guidelines that dictate how an elected official is to maintain public correspondence using personal email accounts.

“It could be that the [district’s] policy allows them to delete these emails very quickly,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “But it doesn’t seem very transparent.”

Witt should be following Jeffco Public School’s policy on record-keeping, said Steve Zansberg, a lawyer for the Colorado Press Association.

Witt, Williams, and fellow board member John Newkirk, who make up the board’s majority, ran on a platform of transparency. And in an extensive interview with Chalkbeat earlier this year, Witt used the word “transparency” more than half a dozen times.

“We have worked very hard with this board to increase transparency and to increase dialogue,” Witt said in February.

Roberts argues that if an elected official truly believes in transparency, he or she shouldn’t be conducting public business outside of official channels.

“If a public official says they’re all about transparency, why are they conducting the public’s business on a private email account in the first place?” he said. “And why are [the emails] not available for the public to review for at least some reasonable time period?”

As part of its investigation, Chalkbeat asked for all emails sent or received by Witt and fellow board members Julie Williams and Lesley Dahlkemper from both their official Jeffco Public Schools account and their private email addresses between Sept. 15 and Sept. 30.

In response, the district provided hundreds of emails sent to and received by the three board members at their official Jeffco schools account. Miller also released dozens of district-related emails — that included notes from constituents, the media, and researchers — from Williams’ private account.

No emails from Dahlkemper’s personal email address were originally provided to Chalkbeat, either.

After receiving the open records request, forwarded to her from Miller, Dahlkemper scanned her personal email account for what she thought was considered “board business,” she said during an interview.

“When I think of board business, I think of conversations with other board members, about a vote or an issue,” she said.

When given other examples of what might constitute as a public document, including conversations with constituents, conducting research, or discussing political strategy with personal advisers, Dahlkemper revisited her email box and released to Chalkbeat five emails including a notice from Facebook that she had been tagged in a status update about school business and a newsletter from a Jeffco parent.

The law
Colorado law requires government agencies to establish a policy regarding digital records. The statue, 24-72-203(1)(b) reads, in part, “Where public records are kept only in miniaturized or digital form, whether on magnetic or optical disks, tapes, microfilm, microfiche, or otherwise, the official custodian shall: (I) Adopt a policy regarding the retention, archiving, and destruction of such records.”Here’s Poudre Valley’s policy, Denver’s policy, and the Colorado Association of School Boards authored a generic policy members can adopt.

According to lawyers Chalkbeat consulted, Colorado law requires government agencies to adopt policies regarding the retention, archiving, and destruction of digital records, including emails. But the statute provides no further guidance on what those policies should be.

The state’s archive department does provided optional guidelines to different government bodies on how long to keep documents that agencies can adopt. For example, school districts should keep routine correspondence, including email, for two years.

Only about a third of the state’s school district’s have adopted the state’s guidance. Jeffco is not one of them.

But the district does not have a written policy directing staff or its board when to delete emails, said district spokeswoman Melissa Reeves. And Miller said he’s never provided counsel to any of the five board members about how to either retain or destroy emails.

Kristin Edgar, outside counsel for Jeffco Public Schools, said that while she is not familiar with all of the policies Jeffco does or does not have, she believes the district is in accordance with the law regarding how the district maintains, releases, and destroys digital records — like email — because some of the district’s records are not digital.

Zansberg said Edgar’s position is “laughable.”

The district has been without a general counsel for nearly a year.

This lack of clarity and statewide expectations has created a de facto patchwork of policies, Roberts said.

“The retention issue is problematic,” Roberts said. “There doesn’t seem to be a whole lot in the law, which I think is unfortunate. There needs to be some kind of system for retaining these records — whatever that is.”

Roberts said he hopes the state’s legislature takes up the issue of records — especially electronic correspondence — retention.

The state’s archive department is working to recruit more school districts and other government agencies to adopt their guidelines, said Sabrina D’Agosta, a spokeswoman for the department.

“We’re very interested in getting as many government entities to adopt our guidelines,” she said. “It creates a solid standards from one entity to the next.”

Shawna Fritzler, a Jeffco Public Schools parent and critic of the board majority that Witt leads, said she hopes the board considers adopting the state’s archivists guidelines and complies with the law.

“You want to be more transparent than less transparent,” she said. “Clearly there are a lot of us in the district screaming about this — and we can’t get them to take it seriously.”

Witt’s disappearing emails

These are a few of the emails Chalkbeat learned about that were either sent by or received by Ken Witt via his private email account. He did not provide these documents to Chalkbeat.